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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 22, 2016

v No. 327926 Berrien Circuit Court GALIEN ALEXANDER GLENN, LC No. 2014-004051-FC

Defendant-Appellant.

Before: S AWYER , P.J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

. Defendant, Galien Alexander Glenn, was convicted by a jury of two counts of assault with intent to rob while armed, MCL 750.89; one count of carryi ng a dangerous weapon with unlawful intent, MCL 750.226; and two counts of assault with a dangerous weapon (felonious assault), MCL 750.82. Defendant was sentenced to 12 to 40 year s’ imprisonment for each of his two assault with intent to rob while armed convictions, two to five years’ imprisonment for his carrying a dangerous weapon with unlawful intent conviction, an d two to four years’ imprisonment for each of his two felonious-assault convictions, with the sentences to run concurrently. Defendant now a ppeals by right. We affirm.

First, defendant challenges the pretrial identification proced ures at which he was identified by two of the victims in this case.

Defendant did not preserve this claim because he did not move to suppress the identification evidence in the trial court. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000). This Court reviews a trial court’s ruling on the a dmissibility of identification evidence for clear error, People v Hornsby , 251 Mich App 462, 466; 650 NW2d 700 (2002), but we review de novo issues of constitutional law presented, People v Hickman , 470 Mich 602, 605; 684 NW2d 267 (2004). But unpreserved issues, including alleged constitutional errors, are reviewed for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). On plain-error review, the defendant has the burden to show (1) “error”; (2) that was “plain,” meaning “clear or obvious”; (3) and that affected substantial rights or caused prejudice, meaning “that the error affected the outcome of the lower court proceedings.” Id . at 763. Even if a defendant satisfies these requirements, an appellate court must exercise its discretion. “Reversal is warranted only when the plain, forfei ted error resulted in the conviction-2- of an actually innocent defendant or when an error seriously af fect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the de fendant’s innocence.” Id . at 763 (citation and quotation marks omitted; alteration in original).

Defendant suggests that the on- the-scene identi fication proced ure at which one of the victims, Michael Cunningham, identified him on the night of the incident was impermissibly suggestive in violation of his due process rights. We disagree

. “The fairness of an identification procedure is evaluated in l ight of the total circumstances to determine whether the procedure was so impermi ssibly suggestive that it led to a substantial likelihood o f misidentification.” Hornsby , 251 Mich App at 466. “When examining the totality of the circumstances, courts look at a v ariety of factors to determine the likelihood of misidentification.” People v Kurylczyk , 443 Mich at 306 (opinion by GRIFFIN, J .), 505 NW2d 528 (1993).

These factors

“include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the wi tness’ prior description of the criminal, the level of certainty demonstrate d by the witness at the confrontation, and the leng th of time between the crime and the confrontation.” [ Id ., quoting Neil v Biggers , 409 US 188, 199-200; 93 S Ct 375; 34 L Ed 2d 401 (1972).]

Testimony involving an impermissi bly suggestive pretrial identi fication procedure is not admissible at trial, but “in-court identification by the same w itness still may be allowed if an independent basis for in-court identification can be establishe d that is untainte d by the suggestive pretrial procedure.” Kurylczyk , 443 Mich at 303 (opinion by GRIFFIN, J .).

The police may conduct a prompt, on-the-scene identification b ecause these procedures are “reasonable, indeed indispensa ble, police practices” that “ permit the police to immediately decide whether there is a reas onable likelihood that the suspec t is connected with the crime and subject to arrest, or merely an unfortunate victim of circumsta nce.” People v Libbett , 251 Mich App 353, 361; 650 NW2d 407 (2002) (citation and quotation marks omitted). In Libbett , a carjacking victim gave a descript ion of his two attackers to po lice officers who arrived at the scene approximately 10 or 15 minutes after the incident that oc curred near midnight. Id . at 355- 356. The victim described the suspects to the police who commu nicated description to other police officers by radio. Id . at 356. Another police officer observed a car that matched t he victim’s description at approximately 1:20 a.m. Id . After both a car chase and manhunt, the police eventually apprehended t he four occupants of the car. Id . At 1:54 a.m., the police brought the victim to where the suspects were being held to see if he c ould identify any of the suspects as his attackers. Id . at 356-357, 361, 362. The victim identified the defendant an d another individual as the two attacker s who had assaulted him and takenhis car. Id

.
The Libbett Court found that the on-the-scen e identification did not viola te defendant’s rights. Id . at 362, 363. The Court reasoned that the identification proc edure “permitted the police to immediately decide whether there was a reasonable lik elihood that th e suspects who-3- had been in the car were connected with the crime and subject t o arrest, or merely unfortunate victims of circumstance.” Id . at 361-362. The Court emphasized that two of the four occupa nts of the car were likely innocent because the victim had reported that he was attacked by two people and that the on-the-scene identification allowed the pol ice to distinguish between the actual perpetrators and other individuals who should be immedia tely released. Id . at 362. The Court also explained that one of the main benefits of prompt on -the-scene identifications is to obtain reliability in the apprehension of suspects. Id . The Court concluded that the two-hour interval between the crime and the on-the-scene identification was not unreasonable because it was conducted as promptly as possible and the attackers’ appear ance was still fresh in the victim’s mind. Id . at 362-363. Moreover, there was no evidence that the police made any suggestive comments at the iden tification or act ed for ulterior motives. Id . at 363.

In contrast, the Michigan Supreme Court found that a pretrial identification procedure was “highly suggestive” in People v Gray , 457 Mich 107, 114; 577 NW2d 92 (1998). In Gray , a police officer “went to the victim’s residence, informed her th at they had arrested the defendant, and showed her a single color pho tograph of the defendant,” aft er which, the victim “became sure that defendant was the one who attacked her.” Id . at 109-111. The Court concluded that “[t]he display of the single photograph, combined with the stat ement that this was the man the police had arrested for the assault, was highly suggestive,” re asoning that “[t]he defendant was singled out by showing only one photo to the victim, and then t he victim was reassured that defendant was her assailant because of the statement by a polic e officer that this was the man the police believed was her assailant.” Id . at 111-112. Additionally, the police officer testified that he was attempting to calm the victim’s anxieties and was not se eking to have her identify the defendant. Id . at 113. The Court found that although the police officer did not appear to have a “malicious” intent, “his subjective intent [did] not eliminate the possibility of a substantial likelihood of miside ntification.” Id . at 113-114.

In the present case, after Cunningham, Sonya Cooper, and John McCoy were attacked while walking home from a party s tore at night, Cunningham call ed 9-1-1. Sergeant Chris Takemoto was dispatched to the scene to investigate at approxim ately 10:00 p.m. and spoke to Cunningham. At some point, the police were informed that the a ttackers had been seen going into a particular house in the neighborhood. Sergeant Takemoto arrived at the house at approximately 10:45 p.m. Officer Michael Horton and other law enforcement officers were there as well. The officers kno cked on the door and spoke to C heree Mayfield, who lived at the house with her five children. Several other individuals, inclu ding defendant, also lived at the house. Mayfield let the officers enter and gave them permissio n to search the house. Officer Horton found defendant and three other individuals in an upstai rs bedroom. Sergeant Takemoto then contacted Cunningham and aske d him to come to the house to see if he could identify any of the individuals as his attacker s. Both Cunningham and Sergeant Takemoto testified that Cunningham stood outside of the house as the officers brought e ach suspect onto the porch and that Cunningham identified defendant that night. Cunningham al so identified defendant in court during trial as one of the men tha t he saw that night during th e on-the-scene show up.

Prompt, on-the-scene identification procedures, such as what o ccurred in the instant case, are generally permissible. Libbett , 251 Mich App at 361. Furthermore, applying the factors outlined by the Kurylczyk Court does not lead us to the c onclusion that the on-the-scene identification in this case wa s impermissibly suggestive.-4- First, regarding the opportunity of the witness to view the cr iminal at the time of the crime, Cunningham testified that during the assault, he could s ee his attackers’ faces illuminated by the street light. Cunningham’s testimony also showed that t he incident lasted long enough for him to circle and move along with the group of people from the dark area of the street to the street light. Thus, Cunningham had a sufficient opportunity to view his attackers as the crime took place. See Kurylczyk , 443 Mich at 306 (opinion by GRIFFIN, J .).

Second, regarding the witness’ degree of attention, Cunningham had the presence of mind to get the attackers to move out of the dark and under a s treetlight where he could see them better by moving in a circle pattern toward the street light. He also took actions intentionally designed to prevent the attackers from getting into his pockets to rob him: he continued to circle rather than remaining still, and he sat down on the ground so t he attackers could not reach into his pockets. These actions demonstrate Cunningham’s high degre e of attention during the incident. See id

. Third, regarding the accuracy o f the witness’ prior descriptio n of the criminal, Cunningham identified defendant on the night of the incident by stating that “he was the one with the carrot-top afro that had the dark handgun.” Sergeant Takemoto testified that defendant had a carrot-top haircut, “like th e comedian,” that night and that defendant’s haircut was “more like a carrot-top” that night than it was at trial. Detective Michael Clark testified that during the on-the-scene identification, de fendant was brought to the door, Cunningham pointed out defendant, and Cunningham told S ergeant Takemoto some details a bout how defendant was involved in the robbery. While Cunningham testified that he sa w more than one person that night with a carrot-top haircut, h e also testified that he saw defendant’s face during the incident, and Cunningham in fact identified defendant specifically as one of the attackers. Because there is no evidence in the record of a description of defendant give n by Cunningham before the showup, this factor does not affect t he suggestiveness determinatio n significantly one way or the other. See id

. Fourth, regarding the level of certainty demonstrated by the w itness at the confrontation, we note that it appears from the testimony that Cunningham was certain about his identification. Cunningham, Sergeant Takemoto, a nd Detective Clark each testifi ed simply that Cunningham identified defendant. There is no evidence that Cunningham was hesitant, indecisive, or in any way uncertain about this identification. See id

. Fifth, regarding the length o f time between the crime and the confrontation, we again see there was testimony that Cunningham called 9-1-1 after the inci dent and that police arrived at approximately 10:00 p.m. Sergean t Takemoto arrived at 833 Edge cumbe at approximately 10:45 p.m., after which he called Cunningham and told him to come to 833 Edgecumbe for the showup. Thus it appears that the on-the-scene identification was c onducted within approximately one hour of the incident. As in Libbett , the on-the-scene identification in the instant case was conducted as promptly as possible and while the attackers’ appe arance was still fresh in Cunningham’s mind. See Libbett , 251 Mich App at 362-363; see also See Kurylczyk , 443 Mich at 306 (opinion by GRIFFIN, J .).-5- Furthermore, there is no evidence that the police made any sug gestive remarks to Cunningham or otherwise influence d his identification of defend ant. See Libbett , 251 Mich App at 363. Defendant appears to mischaracterize the evidence by c laiming that defendant was singled out; the evidence at trial showed that the suspects wer e shown to Cunningham one after the other, but there is no evid ence that any one of these indiv iduals was somehow made to appear more likely to have been involved in the incident than the rest of the individuals. It does not appear that Cunningham was “confronted with only a single indiv idual” as defendant claims. Rather, Cunningham was confronted with multiple individuals, on e after the other. In other words, the instant case did not involve circumstances of the ty pe that were present in Gray . See Gray , 457 Mich at 111-112. There is also no evidence of any improp er purpose or action on the part of law enforcement in relation to the on-the-scene identif ication in this case. While it was late at night and dark outside, there was testimony that the po lice used the porch light and a flashlight to allow Cunningham to see the suspects. Moreover, the fact that the attackers reportedly went into the house do es not mean that every person found inside the house was involved in the assault. Thus, th e prompt on-the-scene identif ication was reasonable and allowed the police to immediately decide whether there was probable cau se to arrest the suspects for the crime or just victims of circumstance. Libbett , 251 Mich App 361. In light of the totality of circumstances, this on-the-scene identification procedure was n ot “so impermissibly suggestive that it led to a subs tantial likelihood of mi sidentification.” Hornsby , 251 Mich App at 466.

To the extent that defendant cha llenges the evidence of Cooper ’s pretrial, out-of-court identification, we find this ar gument without merit. Defendant appears to argue that evidence of Cooper’s identification of defenda nt during a corporeal line-up that occurred on January 28, 2015, should not have been admitted because “she was not one hundred percent sure of the identification and did not bothe r to tell police about the robb ery until three months later after her own arrest.” Defendant does not make any argument that the lin e-up procedure itself was impermissibly suggestive. Rather, defendant’s cla im is really directed at the credibility or weight of Cooper’s identifica tion testimony rather than its admissibil ity. “The credibility of identification testimony is a que stion for the trier of fact th at we do not resolve anew.” Davis
, 241 Mich App at 700.

Because defendant failed to establish that the pretrial identi fication procedures were impermissibly suggestive, he was not entitled to a hearing to d etermine whether an independent basis for an in-court identification existed. See Kurylczyk , 443 Mich at 303 (opinion by GRIFFIN,
J .); People v Barclay , 208 Mich App 670, 675; 528 NW2d 842 (1995). And, because the identification procedures were not impermissibly suggestive, de fendant has failed to demonstrate that plain error occurred. Carines , 460 Mich at 763.

Defendant argues in the alternative that he was denied the eff ective assistance of counsel because defense counsel failed to object to the admission of th e testimony regarding the out-ofcourt identification procedures and failed to have this evidenc e suppressed. Defendant did not move the trial court for a new trial or an evidentiary hearing, so our review is limited to the existing record. People v Musser , 259 Mich App 215, 220-221; 673 NW2d 800 (2003). “To establish a claim of ineffectiv e assistance of counsel, a defen dant must show that counsel’s performance was deficient and that there is a reasonable probab ility that, but for the deficiency, the fact-finder would not have convicted the defendant.” Id . at 221. As discussed above, the identification procedures in this case were not impermissibly s uggestive. Thus, any objection-6- would not have been successful. “Counsel is not ineffective fo r failing to make a futile objection.” People v Thomas , 260 Mich App 450, 457; 678 NW2d 631 (2004).

Next, defendant argues in his Standard 4 brief that the trial court incorrectly assessed 25 points for offense variable (OV) 13, MCL 777.43(1)(b), because the jury never found and defendant never admitted that he was involved in gang-related a ctivity. We disagree.

Defendant did not object to the scoring of OV 13 in the trial court, nor did he raise this issue in a motion for resentencing or a motion to remand. Ther efore, this issue is unpreserved. People v Kimble , 470 Mich 305, 311; 684 NW2d 669 (2004). Consequently, our re view is limited to plain error affecting defendant’s substantial rights

. People v Lockridge , 498 Mich 358, 392, 394; 870 NW2d 502 (2015).

Issues that involve “the proper interpretation an d applicationof the legislative sentencing guidelines, MCL 777.11 et seq . . . . are legal questions that this Court reviews de novo.” People v Morson , 471 Mich 248, 255; 685 NW2d 203 (2004). On an appeal of a se ntence under the guidelines, “the circuit court’s factual determinations are rev iewed for clear error and must be supported by a preponderan ce of the evidence.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to sati sfy the scoring conditions prescribed by statute, i.e., the application of the facts to th e law, is a question of statutory interpretation, which an appe llate court reviews de novo.” Id

. The instructions for scoring OV 13 concerning “continuing patt ern of criminal behavior” are found in MCL 777.43. A score of 25 points is proper where “[t]he offense was part of a pattern of felonious criminal activity directly related to caus ing, encouraging, recruiting, soliciting, or coercing membership in a gang or communicating a threat with intent to deter, punish, or retaliate against ano ther for withdrawing from a gan g[.]” MCL 777.43(1)(b). A score of 25 points is also proper where “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person[.]” MCL 7 77.43(1)(c).

“The sentencing offense is the crime of which the defendant ha s been convicted and for which he or she is being sentenced.” People v McGraw , 484 Mich 120, 122 n 3; 771 NW2d 655 (2009). For purposes of assessi ng points under OV 13, all crim es within a 5-year period that includes the sentencing offense “shall be counted regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a); People v Francisco , 474 Mich 82, 86; 711 NW2d 44 (2006). The sentencing offense itself is counted. People v Wilkens , 267 Mich App 728, 743; 705 NW2d 728 (2005). “[M]ultiple concurrent offenses arising from the s ame incident are properly used in scoring OV 13.” People v Gibbs , 299 Mich App 473, 488; 830 NW2d 821 (2013).

In this case, the presentence i nvestigation report clearly ind icates that defendant was assessed 25 points for OV 13 pursuant to MCL 777.43(1)(c), not because of gang-related activity under MCL 777.43(1)(b). Defendant was in fact convicted of four felonies arising out of the sentencing offenses: two counts of assault with intent to rob while armed, MCL 750.89, and two counts of felonious assault, MCL 750.82. All four felonies are classified as crimes against a person. MCL 777.16d. Thus, defendant ’s felonious acts “involv e[ed] 3 or more crimes against a person” committed within a five-year period of the sentencing o ffense, and 25 points were-7- properly assessed for OV 13. MCL 777.43(1)(c) & (2)(a); Francisco , 474 Mich at 86. Thus, the trial court did not err by asse ssing 25 points for OV 13 where defendant was convicted of

multiple crimes arising out of the same criminal act. Gibbs , 299 Mich App at 487-488 (finding that 25 points were properly assessed for OV 13 pursuant to MCL 777.43(1)(c) where the defendant’s two armed robbery convictions and one unarmed robbe ry conviction all arose out of a single criminal episode).

Defendant’s Lockridge claim concerning his OV 13 score is also without merit. In Lockridge , 498 Mich at 399, the Court held that the Sixth Amendment is v iolated when a defendant’s mandatory minimum punishment is increased by “facts beyond those found by the jury or admitted by the defendant.” Under Lockridge , a defendant who was sentenced on or before July 29, 2015, is entitled to a remand to the trial court for a determination of whether that court would have imposed the sam e sentence but for the mandatory nature of the guidelines if the defendant can make a threshold showing of plain error and was n ot subject to an upward departure. Id . at 397, 399. However, plain error does not exist in cases wh ere “(1) facts admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum number of OV points necessary forthe defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced,” because there is no preju dice to the defendant under these circumstances. Id . at 394-395. In such a case, “no f urther inquiry is required. ” Id

. As previously noted, defendant’s OV 13 score was not based on judicial fact-finding that defendant’s actions were related to a gang activity. Instead, defendant’s OV 13 score was based on his four felony crimes against a person of which he was foun d guilty beyond a reasonable doubt by a jury. Defendant does not challenge his guidelines s coring on any other grounds. Thus, the “facts found by the jury were sufficient to assess th e minimum number of OV points necessary for the defendant’s sco re to fall in the cell of the sentencing grid unde r which he or she was sentenced,” and “no further inquiry is required.” Lockridge , 498 Mich at 394-395. Defendant has failed to make a th reshold showing of plain error and is not entitled to any relief on this ground. Id . at 399.

Defendant also argues in his Sta ndard 4 brief that he received ineffective assistance of counsel because defense counsel failed to object to the incorre ct scoring of OV 13. This argument is clearly without merit. As previously discussed, th e scoring of OV 13 was correctly scored without judicially found facts. Any objection would hav e been unsuccessful. “Counsel is not ineffective for failing to mak e [sic] a futile objection.” Thomas , 260 Mich App at 457.

Finally, defendant also asks this Court, both through appellat e counsel and in his Standard 4 brief, to remand to the trial court for a Ginther 1 hearing. But neither appellate counsel nor defendant submitted any affidavits or made an offer of proof regarding the facts that would be established at a Ginther hearing. Thus, defendant did not support his request with the materials necessary for a proper motion to remand. See MCR 7.2 11(C)(1)(a). Moreover,

1 People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973).-8- defendant has failed to show that development of a factual reco rd is required or that a remand is
necessary. Id . Defendant’s request to remand for a Ginther hearing is denied.

We affirm.

/s/ David H. Sawyer /s/ Jane E. Markey /s/ Colleen A. O'Brien